Abuse of alleged incapacitated persons who are under state court authorized guardianships has become epidemic in the United States. According to a 2010 report issued by the US Government Accountability Office, “GAO identified hundreds of allegations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010.”

Guardianships are part of parens patriae, through which governments initiate programs to care for the vulnerable who may not be able to fend for themselves. In the United States, guardianships are generally launched through state court proceedings when there are allegations that an individual is lacking capacity to care for his personal or financial needs. Upon appointment of a guardian by a judge, the alleged incapacitated person (AIP) loses most of his legal rights, including the right to choose or refuse medical care, the right of association with family or friends, the right to hire a personal lawyer to defend against the guardianship and the right to remain in his own home. As the court appointed guardian is usually granted control over the AIP’s financial affairs, one can quickly see where such a process might be open to abuse by those who only seek self enrichment, not the benefit of the ward.

This report to the Special Rapporteur on Torture will summarize the abuses that are now becoming alarmingly pervasive through state court authorized guardianships in the United States. The Appendix contains victims’ statements, attorney declarations and a compilation of news reports.

GUARDIANSHIP ABUSE AND THE DEFINITION OF TORTURE

Guardianship abuse in many cases meets the definition of torture as elucidated in Article 1 of the United Nations Convention Against Torture. Precisely, Article 1 states

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

It is the contention of this report that guardianship abuse has reached the standard described as torture in many of the referenced cases, in that “severe pain or suffering, whether physical or mental” has been intentionally inflicted on the wards, due to the indifference and callous disregard by those mandated to attend to the well-being of their charges. The pain and suffering has therefore been inflicted not to obtain information but rather through extreme indifference by those who are pledged to care for the individuals under guardianship. This indifference is based on a discrimination implicit in the perception that incapacity or disability can be equated with worthlessness.

In many of the cases discussed herein, the infliction of pain and suffering has resulted in the ward’s death. In a number of these cases, such as the guardian’s decision to withhold antibiotics when AIP Elizabeth Fairbanks came down with pneumonia, one could rationally conclude that the death was intentional.

In addition, the pain and suffering discussed in this report also meets the definition of torture because it is “inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in anofficial capacity.” As guardians are appointed by state court judges and as the judges are mandated to provide oversight and approval for the guardians’ actions, and as lawyers, licensed by State Bars are also involved in the guardianship processes, one can only determine that the culpability for guardianship abuse lies directly with state actors.

As guardianships are ostensibly initiated to care for the well-being of the alleged incapacitated person, one of the caveats in the Article 1 CAT definition of torture is inapplicable. The definition states that…“It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” As the purpose of guardianship is to care for and preserve the well-being of the ward, the application of sanctions or punishment have no relevance. The fact that guardians are in many cases choosing to inflict isolation and medical abuse on their wards is not within the general understanding of “care” for the infirm. It becomes “lawful” only because it is approved by a judge, even when in defiance of written law.

The reality is that when a person undergoes guardianship he experiences legal nullity. He has no right to go to court and complain about his treatment and has no rights to refuse abusive treatment or to remove himself from his abusers. Guardianship constitutes a legal loophole in which a person can be denied his Constitutional and statutory rights. He becomes trapped within a system in which he has no legal viability.

Very often, the few legal rights afforded those under guardianship or those who are attempting to advocate for those under guardianship are simply ignored. When William Horspool brought to San Bernardino Court (California) photographic evidence that his father, WWII veteran and conservatee Raymond Horspool, was being physically neglected by the guardian, Judge Michael Welch ordered the pictures destroyed and then levied a restraining order against William Horspool, so that he could no longer visit his father unsupervised and take such damning photos. Was this “lawful?” Not at all. William Horspool was not granted due process under the law and was “legally” restrained without ever having a hearing on the restraining order.

Raymond Horspool’s life was subsequently terminated by his guardian, who decided that Horspool’s chest implanted pacemaker should not be recharged when its battery ran down. Horspool died from a heart failure that was entirely preventable should his guardian (who parenthetically stood to inherit from Horspool’s demise) have taken the necessary medical steps to have the battery replaced.

Guardians are regularly making end of life decisions for their wards, when the guardians stand to profit should the alleged incapacitated person die. Such a circumstance was clearly in evidence in the Lawrence Yetzer matter, also in San Bernardino court. There should be no dispute that putting Yetzer on a ventilator, then plying him with medications to inhibit his ability to breathe independently, then removing him from the ventilator and letting him die, would constitute an act of torture as well as premeditated murder. As you will see from the attached article concerning the Yetzer case, hundreds of thousands of dollars belonging to Yetzer appear to have been stolen by his guardian, Melodie Scott.

FORCED DRUGGING AND TORTURE

In a March 2013 report to the Human Rights Council, Special Rapporteur on Torture Juan Mendez focused on abuse in health care settings as potentially constituting torture. Mendez stated “In order to demonstrate how abusive practices in health-care settings meet the definition of torture, the key elements of the definition of torture and ill-treatment and its

applicability to the abuses in health-care settings are examined. Important interpretative and guiding principles such as legal capacity, informed consent, and the doctrine of “medical necessity” as well as the concept of stigmatized identities provide useful guidance in understanding the breadth of the problem and the underlying causes that are paramount to most of these abusive practices.” He goes on to discuss the necessity of repealing “provisions allowing confinement or compulsory treatment in mental health settings, including through guardianship and other substituted decision-making…”

Central to the discussion of compulsory mental health treatment is the issue of forced drugging. The atypical anti-psychotics, which are lauded for suppressing auditory hallucinations, are used prolifically for non-psychotic disorders and are liberally used on elderly people who are under guardianships or in nursing homes. Research has revealed that these drugs, such as risperdal and zyprexa, are medically dangerous for the elderly. Since 2005, risperdal has carried a “black box” warning, which states

Elderly patients with dementia-related psychosis treated with antipsychotic drugs are at an increased risk of death.

RISPERDAL is not approved for use in patients with dementia-related psychosis.

Nevertheless, risperdal continues to be liberally prescribed for the elderly.

For younger populations, atypical anti-psychotics have been associated with increased risk of diabetes and tardive dyskinesia, which is neurological damage, resulting in unsightly and often permanent tremors and jerks. In addition, the continued use of neuroleptics has been noted to result in brain atrophy.

The attached affidavit by attorney Katherine Hine details one such case in which the details of forced drugging and prolonged mental health incarceration reveal the disinclination of Ohio judges to apply the law to those involuntarily incarcerated in psychiatric hospitals or nursing homes.

Those incarcerated in mental hospitals are having their rights to refuse treatment overridden ostensibly “for their own good,” even when such treatment is clearly deleterious. Those under guardianship don’t have the legal standing to refuse medication — even when the medication, such as risperdal, is known to cause increased risk of death.

RETALIATION AGAINST GUARDIANSHIP ACTIVISTS

Those advocating for the rights of alleged incapacitated persons under guardianship would fall into two categories—legal advocates (lawyers) and concerned family and friends. Both groups are now experiencing heavy retaliation in the United States for their efforts to advocate for those under guardianship.

A number of individuals providing information for this project have had restraining or gag orders